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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, December 12, 2016

The Court of Appeals has upheld the judgment in favor of an excessive force/false arrest plaintiff who prevailed at trial after the district court granted the plaintiff's motion for Rule 50 relief. The second plaintiff, who lost at trial, wins a retrial with new jury instructions on his excessive force claim. This case raises a variety of issues, to be discussed in a series of blog posts.

The case is Dancy v. McGinley, decided on December. (I handled this appeal along with lead counsel, Christopher Watkins, Esq.). We start with plaintiff Elting, who walking down the street one night in Poughkeepsie with co-plaintiff Dancy, when a police officer, McGinley approached them after hearing about an attempted robbery elsewhere in the city. Dancy was the suspect, not Elting. Elting and Dancy are black. As McGinley approached the plaintiffs, they looked over their shoulder his police car. After McGinley exited his car, Elting called his mother on his cell phone, ignoring McGinley's directive to put it away (the officer thought the phone posed a safety threat and might be used to interfere with the investigation). McGinley then placed his hand on Elting and said Elting then tried to run. They both ended up on the ground, and Elting suffered physical injuries. Elting was charged with Obstructing Governmental Administration.

At trial, the district court issued two rulings. First, the court said Elting was entitled to judgment as a matter of law because McGinley had no basis to even stop and detain Elting. This means this issue did not even reach the jury and Elting won his claim challenging the Terry stop. The court also said McGinley lacked probable cause to charge Elting with Obstructing. McGinley challenges these rulings.

Most police cases brought under Section 1983 are resolved by the jury (if the court does not dismiss them on summary judgment). It is the rare case where a Section 1983 plaintiff wins the case on a mid-trial Rule 50 motion. The Second Circuit (Chin, Livingston and Carney) says the district court got it right on both rulings.

1. First, the Second Circuit says McGinley had no basis to even detain Elting in the first instance. McGinley justified the detention because (1) Elting was walking down the street with someone who in some ways looked like the suspect; (2) the attempted robbery took place a few blocks away; and (3) Elting and Dancy looked over their shoulders when McGinley's police car approached. None of these arguments satisfy even the lenient standards governing Terry stops under the Fourth Amendment. Judge Chin notes in part that "the mere presence near someone who somewhat matches a vague description is not a reasonable basis for suspicion," and it was not enough to say the attempted robbery took place a few blocks away, particularly since Poughkeepsie has a sizable black population and a Google maps printout shows this was the busy part of town, where you would expect blacks to walk down the street at random. There is also nothing suspicious about looking over your shoulder to look at an approaching police car.

2. Nor did McGinley have probable cause to arrest Elting for Obstructing Governmental Administration, the Second Circuit held, as Elting's use of his cell phone does not mean he was obstructing any investigation, and he was under no legal obligation to speak with McGinley or cooperate with him in the first instance. Second, "Elting's actions could not have constituted obstruction of governmental because McGinley's Terry stop and frisk were unauthorized."

What strikes me about this opinion is how the Second Circuit repudiates McGinley's justifications for the Terry stop and the arrest. You do not see this often. Even more notable is the "Black Lives Matter" moment we see along the way. Judge Chin quotes from Justice Sotomayor's recent dissenting opinion in a recent Fourth Amendment case in stating:

Because subjective intentions are irrelevant to this analysis, we do not assess what was motivating this police officer when he decided to stop Elting. But we do know that, objectively speaking, he lacked reasonable suspicion, and so violated the Fourth Amendment by detaining Elting without an adequate basis. As a result of this suspicionless stop, an African-American teenager was arrested, jailed, and subjected to "the humiliations of [an] unconstitutional search[]." Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting). Circumstances like these remind us that specificity in articulating the basis for a stop is necessary "in part because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and 'severely exacerbate police-community tensions.'"

Elting's case went to the jury on damages. The jury awarded him over $200,000.00 in damages. The district court reduced that award somewhat, to be discussed in the next blog post.